Professor Sam Kamin

The Obama administration may be on the verge of irking large swaths of its supporters by employing scarce Justice Department resources to go after users of small amounts of marijuana in Colorado and Washington, where voters, by comfortable margins, voted to legalize limited amounts of possession.

The New York Times’ Charlie Savage reports that senior officials in the administration “are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.” Savage goes on to describe some of the possibilities the administration could take – sue the states arguing that federal law trumps state action in this area. (The Controlled Substances Act prohibits sale and possession of marijuana.) The Justice Department wouldn’t talk to Savage about administration plans on the matter, but did highlight a statement issued recently by the U.S. Attorney in Seattle, stating that marijuana remained illegal pursuant to the CSA.

Sullivan obliges, writing that if administration officials decide “to treat the law-abiding citizens of Colorado and Washington as dangerous felons; if they decide to allocate their precious law enforcement powers to persecuting and arresting people for following a state law that they have themselves just passed by clear majorities; if they decide that opposing a near majority of Americans in continuing to prosecute the drug war on marijuana, even when the core of their own supporters want an end to Prohibition, and when that Prohibition makes no sense … then we will give them hell.”

Following on the victories for limited legalization of marijuana in Colorado and Washington, advocates for legalization are gearing up for more state action. Andrew Sullivan in a post, “The Legalization Tipping Point,” notes that lawmakers in Rhode Island, Maine, Massachusetts, and Vermont are contemplating legalization legislation.

Legislators from Rhode Island and Maine during a teleconference today conducted by the Marijuana Policy Project discussed their plans to introduce measures that would decriminalize marijuana and allow the states to tax and regulate it “in a manner similar to alcohol.” The MPP statement about the call said lawmakers in Massachusetts and Vermont were planning on introducing similar legislation.

In the MPP press announcement, Robert Capecchi, the group’s legislative analyst lauded last week’s victories, noting both ballot initiatives passed with about 55 percent in favor. He also declared, “We are passing the tipping point when it comes to this issue. Unfortunately, lawmakers have traditionally been behind public opinion when it comes to marijuana policy reform. With these thoughtful legislators in at least four states planning on introducing sensible proposals to remove criminal penalties and regulate marijuana in their states, it’s clear that ending marijuana prohibition is gaining momentum.”

A string of states – 17 – and the District of Columbia already have laws permitting varying uses of marijuana for medicinal purposes. Denver’s medical marijuana industry, even with the efforts by the federal government to impede it, has become robust. But we still do not know how the Department of Justice will respond to the measures approved in Colo. and Wash.

By Sam Kamin, Director, Constitutional Rights & Remedies Program and Professor, Sturm College of Law, University of Denver

With the passage of marijuana legalization initiatives in Washington and Colorado, the long-simmering cold war between state and federal marijuana policy threatens to break out into open hostilities. While eighteen states plus the District of Columbia now permit marijuana for medical purposes, only Washington and Colorado have taken the bolder step of both repealing entirely their marijuana prohibitions for small amounts of the drug and requiring their state legislatures to begin regulating a retail, recreational marijuana industry by the end of 2013.

Everything now depends on the response of the federal government. Notwithstanding changing policy in the states, marijuana remains on the DEA’s list of Schedule I narcotics, those drugs whose manufacture and sale are strictly prohibited. Thus, every transaction in every medical marijuana state throughout the country constitutes a federal crime. The Justice Department has grudgingly accepted the medical marijuana industry thus far; while there have been some federal raids on these businesses, they have generally been permitted to operate, notwithstanding their open flouting of the Controlled Substances Act (CSA).

In 2010, when the state of California considered Proposition 19 which would have legalized marijuana for recreational purposes U.S. Attorney General Eric Holder issued voters in that state a strong warning. He made clear that the federal government would “vigorously enforce” the provisions of the CSA in the state if voters passed the Proposition. After having an early lead in polls, the measure eventually lost.